President Donald Trump’s immigration authorities are moving to enact broad changes to a visa that allows American companies to bring international workers to the country.
On Friday, U.S. Citizenship and Immigration Services and the Department of Homeland Security released a proposed rule that takes the first steps toward overhauling the H-1B visa.
The new rule would prioritize applications for workers with advanced degrees from American universities. The policy would also change the application process companies go through when they want to secure H-1B visas for foreign talent. Instead of completing a petition for the new employee, companies would register for free online to enter what’s been described as the “H-1B lottery.”
Immigration law caps the number of regular H-1B visas that can be awarded each year at 65,000. An additional 20,000 may be awarded to workers with master’s degrees and PhDs. Under the new system, USCIS would review all applications, including those for workers with advanced degrees, during a registration period before the actual petitions are filed.
This change to the review process “would likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations,” according to the proposed rule.
Why the change?
Since the beginning of his presidency, Trump has been critical of H-1B visa abuse, calling it “a cheap labor program.”
He isn’t alone in his frustration with IT staffing firms that flood the H-1B lottery system with as many applications as possible, bringing in a disproportionately high number of workers and contracting their services out to other companies. Although Microsoft relies heavily on the H-1B visa to hire foreign-born employees, its CEO, Satya Nadella, called Trump’s review of the program “a good thing,” explaining that “there is the right use of [the H-1B] and misuses of it.”
Michael Emmons is a vocal critic of so-called “outsourcing firms” and what he sees as abuse of the system. The Florida software engineer was one of about 20 Siemens employees asked to train their replacements when the company contracted with Tata Consulting India to bring in workers on H-1B and L-1 work visas.
“Who knew my own government would create replacement programs to put me out of work?” he testified before Congress in 2004.
Emmons told GeekWire the proposed rule change “is a start” but added, “it would be good for U.S. workers if the wage paid was a priority in H-1B selection process.”
A fairer lottery?
The changes announced Friday modestly increase the chances that workers with advanced U.S. degrees will land an H-1B and lower barriers for companies seeking the visas. That’s according to Doug Rand, co-founder of Seattle startup Boundless Immigration and a former immigration policy official in the Obama White House.
“It also would make it cheaper and easier for companies to apply for the lottery, by making the ‘lottery ticket’ a free online registration rather than a full-blown application,” Rand said. “In the annual battle for H-1Bs between IT outsourcing companies and tech companies seeking longer-term workers, this rule would probably help the latter.”
DHS included a provision in the proposed rule change to try to prevent staffing firms from inundating USCIS with registration attempts.
“To address potential issues of ‘flooding the system’ with non-meritorious registrations, DHS is prohibiting petitioners from submitting more than one registration for the same beneficiary during the same fiscal year,” the rule says.
What comes next?
The proposed rule change is likely the first of many, Rand says. It does not address two other policies that the administration has expressed interest in revising. In 2017, DHS announced plans to rescind an Obama-era policy allowing the spouses of H-1B visa holders to work in the country. That possibility has been troubling to people like Jansi Kumar, who came to the U.S. on a spousal H-4 visa under the expectation that she’d be able to work.
“The only reason I came to the U.S. was because I knew … I would be able to work,” she told GeekWire in July. Kumar added that without that assurance, “I would have asked my spouse to come back to India or relocate to Canada or any other location.”
The rule introduced Friday also doesn’t raise the minimum wage required to hire a worker on an H-1B. Those additional changes will most likely come in the form of separate regulations over the next few months, according to Rand.
DHS plans to publish the new rule Dec. 3, which will kick off a 30-day public comment period. It could be more than a year before the new rule takes effect.
